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The events of November 2008 will definitely remain in the memory not only because of the American elections, but also for the hopes that arose almost simultaneously from a successful international conference at Georgetown University-Islam in the Age of Global Challenges: Alternative Perspectives of the Gulen Movement. Participants from different parts of the world discussed for two full days how to deal with problems from poverty and education to gender issues, problems that are posing ever greater and more global threats to humanity. With schools and cultural centers over 110 countries as well as relief and charity organizations with a global outreach, the Gulen movement offers an interesting field of research for social scientists. I would like to draw readers’ attention to an essay in this issue by Farid al-Ansari of Morocco, who presents an insightful portrayal of this movement with which the author reveals he has deep resonance himself.

We are also proud to present in this issue an exclusive interview with Professor Ahmed Zewail. Conducted by Dr. Nuh Gedik, this wisdom-filled interview gives analytical insight into the decline of Muslims from the pinnacle of human civilization which they achieved and maintained for long centuries.

For The Fountain, this past November was also exceptional for something that happened for the first time: a women writers workshop. In order to encourage more female writers to activate their potential or blow the dust off their writing skills, a writing workshop exclusive to women was organized jointly by The Fountain and volunteers in Pittsburgh. Eighteen authors from different states participated. They brainstormed on various issues, ranging from how to be an effective writer to the aspects in which The Fountain is different from other periodicals. Former contributors shared their writing experience with beginners, while previous issues were comprehensively evaluated and analyzed. We are very grateful to the organizers, and we hope this volunteer spirit, without which The Fountain would not have become what it is, will continue to generate quality material for our readers across the globe.

Law and literature

The relationship between law and literature is ages old. If we go back to the origins of law, among the ancient Greeks it was aligned with rhetoric, speaking and writing. Rhetoric was originally intended to present arguments in court. As law became more professional, it was closed off from this. Thus, law and literature have taken different ways, literature being more and more concerned with the expression of human emotions and feelings, while law became increasingly concerned with the maintenance of social order.

Nexus between law and literature

Law and literature are closely interrelated. One of the sources of law is “legal fiction.” Legal fiction, that is, fictio juris means “any assumption which conceals or tends to conceal the fact that the rule of law [has] undergone any alteration, its letter remaining unchanged but its operation being modified” (Islam, 2002). By means of a legal fiction, a child can be adopted from one family into another. In the eye of the law a limited company is given a personality which is distinct from that of its members. Case law is based on a fiction that while enacting a particular rule of law, the legislature had a particular intention. Fiction also played an important role as a source of law in ancient times. There was a rule of procedure in Rome by which a non-Roman was allowed to make a false allegation that he was a Roman citizen and thereby a praetor urbanus was able to try his case. The fiction of citizenship was adopted merely for the purpose of extending the Roman law to the non-Romans. All were under the same “lex gentium.” In England the Court of Exchequer took jurisdiction over civil cases by means of a legal fiction that the plaintiff was the debtor of the king. These fictions were adopted by the courts as devices to add to the jurisdiction of the courts. The old Roman law was laid down in the Twelve Tables, and additions to it were made by Responsa Prudentium-the judgements of the men learned in law. The teachings of the most highly qualified of various nations are still considered as a source of international law.

Fictions stand in the way of the codification of law. A property may be in the actual possession of X, but at the same time may be in the constructive possession of Y, the owner. No trust may have been created, but law may presume the same. By fiction, a Hindu child in the womb becomes entitled to family property.

Legal fiction and legal presumption, however, are not the same. Legal fiction is a source of law while legal presumption is a rule of law. One fact is recognized by law as sufficient proof of another. A notification in the official gazette is presumed by law to have been duly signed by the person by whom it is purported to have been signed. These few examples are perhaps enough for us to understand that law can be regarded as literature.

In this context, we can very relevantly talk about the Holy Qur’an which gives the impression of a perfect piece of exposition on one hand and a storehouse of law on the other. The Qur’an may sound astonishingly literary in terms of content and style, and at the time of its revelation poetry and oratory skills were the most outstanding forms of art in Mecca. Having heard the Qur’an’s enchanting verses, the best poets of the time tore apart their poems for they thought they could not challenge it. But as the Qur’an is the word of God, ascribing literary characteristics to the Holy Scripture is to devalue it. Nevertheless, various powerful forms of expression are found in the Qur’an to convey the message of Islam. The chapters and verses of the Qur’an maintain phonetic and thematic structures so that people can recall the message of the text. The narrative style of the innumerable events, particularly their dramatic presentation, have continued to amaze the scholars throughout the centuries. Sells says, “The values presented in the very early Meccan revelations are repeated throughout the hymnic suras. There is a sense of directness, of intimacy, as if the hearer were being asked repeatedly a simple question: what will be of value at the end of a human life?” (Sells, 1999). But these very verses are basically the laws meant to be for the whole humanity. Coupled with the Prophet’s practice the Qur’an as a main body of Islamic religious law undoubtedly covers almost all the aspects of human life ranging from family, sexuality, hygiene, social issues, business, economics, to politics both national and international. Thus the ultimate law comes in the form of a perfect exposition.

The impact of literature on law is far reaching with regard to teaching, legal writing, statutory interpretations and duly submission of petitions before the bench. Many authors have tried to show the human condition and the law’s effect on it through their literary works from a neutral point of view. The fictional situations presented in literature, they assert, can tell a great deal about political and social situations, and the individuals that often find themselves before the court. Ronald Dworkin in his article, “Law as Interpretation” stated, “I propose that we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature” (Dworkin, 1982).

Intermingling of law and literature as reflected in the works of some great authors

Some popular as well as critically acclaimed literary works by prominent writers like Shakespeare, Kafka, Dickens, Camus, have dealt with the theme of law. Almost every careful reader would know that these writers were influenced by the legal system of their own time and were aware of its impact both the personal and social level. It would be wrong to think that they took law as the subject matter of their novel or play just to tell an interesting story. In fact, through skilful plot development their views about the then legal system are expressed. What is most interesting here is that they were influenced by the law and have definitely influenced the law as well.

The Stranger or The Outsider is a novel by Albert Camus where the virtues of truth confront the deceits and corruptions of law. We also come to know about the justice system of the time and existing loopholes as the trial for the murder of an Arab proceeds. Furthermore, the novel addresses the issue of the inevitable conflict between defective legal proceedings and a man’s individual way of thinking.

Franz Kafka’s The Trial is another novel where the author exposes how law is abused and made to bring enormous suffering to a man’s life. The main character, Josef K., awakens one morning and, for reasons never revealed, is arrested and subjected to the judicial process for an unspecified crime. Some crucial questions of judicial proceedings like a backlog of cases, arresting on suspicion and detaining a person for an uncertain period, absence of proper investigation, and absence of the right to self-defence are brought to our attention.

Shakespeare’s works contain a remarkable quantity of law terms and they are used very accurately. The use of legal jargon in Hamlet is particularly impressive. But it is The Merchant of Venice, a controversial tale of a Jewish moneylender, that examines themes of justice and the bias of legal systems.

Dickens’ popular novel Bleak House is particularly known for the novelist’s blunt attack on the flaws of the British judiciary system. Dickens’ experience of working as a law clerk in London came in handy in unearthing and depicting the law’s flaws so vividly. The plot concerns a long-running legal battle that takes place between two parties claiming the inheritance of a large property, a battle which in the end costs both parties dearly. Many believe that Dickens’s harsh portrayal of the lengthy Chancery system made way for the reforms that took place in the 1870s.

Benefits of intermingling of law and literature

The intermingling of law and literature produces certain benefits for both the subjects. First, literature is exceptionally capable of probing human psychology and conditions through text. This capacity can be combined with the legal framework which regulates human actions in real life and truly pave the way for a democratic judiciary which is a prerequisite for establishing a just and moral society. Second, literature is considered to be a carrier of human will and freedom of expression. This characteristic can be positively incorporated into the judicial system to facilitate more humane legal decisions. Third, literature helps us understand the text’s role in defining human experience as used in legal rhetoric. Fourth, by applying literary methods in legal writing, laws can be more readily interpreted and legal decisions can be conveyed more effectively. Fifth, reading and writing literature helps improve clarity of expression which is a must for everybody involved in the legal profession. Moreover, every citizen of a society should also acquire this clarity to enable them to defend themselves in the legal arena. Next, special cases can be accommodated through the application of literary standards to legal documents and thus despotism can be reduced to a great extent. In this regard some proponents of the admixture of law and literature argue that this looks back to and restores the image of the lawyer as a person of letters possessing a broad liberal education and being well versed in languages, rhetoric and literature, who views law as an aspect of the humanities and the public life, not a science or a business. Lastly, one of the skills literature teaches lawyers is the power of the imagination so that lawyers learn to place themselves in the shoes of the client, the opponent, the witnesses, the judge, and the jury in order to anticipate reactions to their pleadings, presentation of evidence, arguments, and settlement proposals.

However, one need not think that only law will benefit from this intermingling; rather, it is advantageous for literature as well. The law has immensely enlarged the area and scope for literature already. The law enriches itself every day and this ever widening sphere of law can be a great source for literature. Until now most literature in which law plays a major role has concerned criminal law, ignoring the many disputes over inheritance, contracts, divorce and real property. These very issues can be presented with more legal focus in literature if the writers are interested in knowing a bit more about law and the legal system. In this context we do very well remember the nineteenth-century British novels which are rich sources of thinking about law and lawyers and offer insight into the legal heritage, mainly because the novelists Charles Dickens, George Eliot, Anthony Trollope and others participated in the debate about the best way to implement legal reform. In this regard more scope will be created to consider human feelings, emotions, and the environment where a person is raised. Then theories of punishment-as there are different theories available, like reformative, punitive, deterrent, expiation, preventive, and so on-should be analysed thoroughly. This is where literature can open up windows of thought for the reformers.

In fact, law is not at all a stagnant subject, rather it has undergone huge changes over the ages and literature can very well claim to be the greatest contributor. Different writers in different ages have made the lawmakers think about the loopholes of the prevailing laws through their writings. This is how new interpretations of different laws have come about, and thus the loopholes have been exposed. Similarly, writers have provided us with new ideas about how to define crime and punishment under different circumstances and helped clarify law. Likewise, the discretionary power of the judges and its effects on the justice system can be viewed in a broader literary perspective. In this context the effort of Lord Denning, the greatest law-making judge of the century is worth mentioning. Lord Denning showed his willingness to override precedent to do what he saw as justice and foreshadowed the move towards moulding the law to suit changing times and circumstances.

The definition of an offence can be scrutinised even more critically if it is seen through literature. Taking lessons from literature, life can be improved, which can substantially help the law-enforcement agencies to maintain order in society with ease and comfort. Social and communal conflicts are commonplace in every country and they are well-depicted in literature; law can borrow these materials to deal with them. Literature also helps to find ways of dealing with psychological problems which are quite common in human life and have certain effects on the whole of society. Again literature tells us how to look at these sensitive issues and therefore may help the law manage them in a more delicate way. As edification is one of the objectives of literature, the blending of law and literature ultimately helps the moral development of anybody concerned with the law. Since literature critiques lawyers and the overall legal system, this intermingling will certainly widen the scope for criticising the different shortcomings of the legal system, such as delays in trial proceedings, imprisonment without trial, torture on remand or interrogation, lack of sincerity in investigation, corruption, and so on, and will no doubt help to find ways to curb them.

Recently, in the global perspective, law has expanded its sphere and in the process problems like eviction, mass killing, war crimes, arbitrary power, and illegal occupation by foreign armies have come to the fore. All these issues are the themes of many literary works by different writers, which can assist legal experts to find ways to think about and deal with them. Literature also helps in building a better society by illustrating the consequences of committing crimes and the dreadful conditions of a criminal life.

To conclude, the intermingling of literature and law can give us hope of having a legal system touched by humanity. It may help writers to produce literature with more experience of life and society. At the same time, we need not forget that law is a part of our culture, not a mere technical study and it has a lot to offer to literature as well. As literature is a storehouse of alternative visions of law and society, the more literature comes into the thoughts of a lawyer or a law student, the better is the chance of law in a society paying due regard to human values and emotions, a quality which many people believe law seriously lacks. Likewise, literature should be more concerned with the everyday problems of life and a true reflection of society in the broad view. The times demand that writers do not just project a series of imaginary pictures playing in their minds, and law can truly help literature meet this demand.

Ahamuduzzaman is a Senior Lecturer at the Department of Law, ASA University, Bangladesh. Sharif Rakib Hasan is a Lecturer at the Department of English at the same university.

References

• Brooks, Peter and Gewirtz, Paul. Law’s Stories: Narrative and Rhetoric in the Law, London: Yale University Press, 1996.
• Campbell, John. Shakespeare’s Legal Acquirements, London: Kissinger, 2001.
• Camus, Albert. The Stranger, USA: Tandem Library, 1999.
• Dickens, Charles. Bleak House, London: Yale University Press, 2000.
• Dien, Mawil, Izzi. Islamic Law: From Historical Foundations to Contemporary Practice, Notre Dame: University of Notre Dame Press, 2004
• Dworkin, Ronald, M. “Law as Interpretation,” Critical Inquiry, 1982, Vol. 9, No. 1. p. 179.
• Islam, Mahmudul. Constitutional Law of Bangladesh, Dhaka: Mullick Brothers. Second edition, 2002, pp. 58–60.
• Minda, Gary. “Law and Literature at Century’s End,” Cardozo Studies in Law and Literature, 1997, Vol. 9 No.2, pp. 245–258.
• Kafka, Franz. The Trial, Munich: Kurt Wolff Verlag, 1925
• Sells, Michael. Approaching the Qur’an, USA: White Cloud Press, 1999.
• Shakespeare, William. Hamlet. USA: Dover Publications, 1992
• –. The Merchant of Venice, USA: Penguin Group, 1998. 

Two principal kinds of indications have been defined for ‘termination of pregnancy’. The first, called ‘medical indications’, are: 1) That continuance of the pregnancy would put the life of the pregnant woman at risk, or put her physical or mental health or that of any existing children, at greater risk than if the pregnancy were terminated; 2) There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously disabled.

The second kind of indications, the so-called ‘social indications’, are more complex and vary between cultures and epochs. Examples are: pregnancies resulting from extra-marital relations, from rape or incest, unwanted or unplanned pregnancies, pregnancies at too young or too old an age, expecting a baby of the ‘wrong’ sex – the information being provided by recent medical technology. We may note that it is primarily ‘social reasons’ of this sort that lead parents to seek abortion. The actual termination of pregnancies has been carried out either by health professionals or by some unqualified person, sometimes even by the pregnant woman herself.

Abortion has always been discussed by doctors, philosophers, lawyers and theologians from different perspectives. Here I shall go over some of these arguments, and try to come to a conclusion about the ethics of abortion. Actually, as Dunstan observes (1978, p.7S), we shall be considering the ethics of a practice already very widespread, and likely to become more so, in all regions of the world, developed and developing. At least fifty million abortions are carried out annually world-wide, and, for example in France and Japan, half of all pregnancies end in abortion (E.B., 1982, vol.2, plO69). One and half million abortions are performed in USA each year, one-third of them on teenagers between 12 and 17 years old (Poots & Diggory, 1983, p.287). Therefore, it is rather difficult to discuss the moral acceptability of something which has already been so widely accepted. A 1991 Harris poll showed 81% of adults in England in favour of a woman’s right to choose’ to have an abortion in the first three months of pregnancy (Cole, 1992, p.2) Mason (p.113) states that: ‘The significant feature is not so much the total number of abortions but, rather, the steady escalation in numbers over the years. The figures indicate that there must be an increasing public acceptance of abortion as a natural way of life’. Dunstan (1974, p.87) commenting on this fact writes: ‘Abortion is now being more widely legalized and practised because that is what people want – an indication for medical intervention for the destruction of life unknown in our ethics before’.

Writers on the abortion issue have concentrated most on two matters: first, the ‘rights’ of the fetus and the mother, in particularly the property right of the woman on her body; second, the question of the ‘personhood’ of the prenate (i.e. the unborn child). Judith Jarvis Thomson is one of the pioneers among writers who approach the issue from the perspective of the ‘rights’ of the fetus and the mother. She has no difficulty recognizing the ‘personhood’ of the fetus. She says every person has a right to life, so the fetus has a right to life. However, she believes that the mother has a right to decide what shall happen in and to her body (Dunstan, 1974, p.203).

The ‘personhood’ or legal, moral status of the prenate is a very involved legal, philosophical question which I have addressed elsewhere (see Aksoy, 1996).

People who have defined views on the issue generally take one of three positions: 1) abortion is always wrong and must never be performed at any time for any reason; 2) abortion may be carried out at any time for any reason; and 3) abortion should only be allowed up to a certain stage of pregnancy, after which it should not be allowed except under certain special conditions.

The people in the first group are not very many. They follow the Roman Catholic teaching. which maintains:

‘We cannot be absolutely certain when animation takes place, or when the conceptus or the fetus is a human person; but it may well be precisely at the moment of conception. This being so, it would be seriously wrong to destroy the fertilized ovum even then, because one might be killing a human person’ (Mahoney, 1984, p.69). According to this strict line, abortion is impermissible even when the mother’s life is in danger or the pregnancy is the result of an indecent event, like rape or incest.

The second position is held by those who advance the ‘personhood’ argument. Harris (1990) is one of those writers who suggest that: ‘A person is a creature capable of valuing its own existence. And non-persons or potential persons cannot be wronged in this way because death does not deprive them of anything they can value. If they cannot wish to live, they cannot have that wish frustrated by being killed.’

The third position which may be defined as ‘moderate’ maintains that abortion should not be allowed after a certain stage of pregnancy and only if particular circumstances justify it. For instance, it is a very common view that abortion should be permitted in order to save the mother’s life. Some people believe that abortion is also morally permissible when pregnancy is the result of rape or incest, and when a severe fetal abnormality has been diagnosed. There are also writers who suggest that termination of pregnancy should be permissible if the potential mother is too young.

One exceptional circumstance which justifies abortion, on this view, is the diagnosis of severe abnormalities in the fetus. The argument is that it is wrong to bring avoidable suffering into the world and we are morally obliged to terminate the life of severely handicapped fetuses. One writer has explained that it is a misconception to regard this justification as ‘on behalf of’ the fetus (Mason, p.106). In reality the suffering being avoided is being avoided on behalf of the mother and other potential carers. We need to be clear about whether the termination due to disability is being considered in the supposed interest of the unborn child – that it is ‘better’ for that child not to live at all then to live with a foreseeable handicap – or in the ‘interest’ of those who would have the care and burden of that child’s life, including its suffering and pain (Dunstan, 1974, p.84). Williams (1987, p.297) is explicit that abortion on such grounds relates to the welfare of the parents, whose life may be blighted by having to rear a grossly defective child, with perhaps in the background such secondary considerations as costs to the public purse.

For all the debate, the suggestions and counter-suggestions and alternatives, it seems likely that abortion will remain the dilemma it has been for centuries. However, we must bear in mind the fundamental fact that abortion is termination of the life of a living creature. We must approach ending the life of a prenate as cautiously and sensitively as we would ending the life of any other living creature, and we should not end the life of any living being unnecessarily and without very good reason. On the question of the ‘personhood of the prenate, we can be sure only that we will never be sure about it, unless we discover some sort of ‘Turnasol Paper’ like indicator to decide the matter. As the moral status of the prenate is not something material, we need to refer to the authority of metaphysical and transcendental knowledge, and the religions are among these sources. As I have tried to show elsewhere (Aksoy, 1966), not only all religions but also many philosophers from Aristotle onwards have declared that a human being consists of body and soul. In the religious perspective, the earthly existence of a person ends when the soul departs the body. At the other end of this ‘silent journey’ (Aksoy, 1995), the human person begins when the soul joins the body. We do not know very much about the when and how of the soul’s departure, but there are clear statements in the Qur’an about the time and the process of ensoulment. There is also some information related to this in the Talmud, and some detailed explanation in Aquinas’s works.

All the scientific (anatomical and physiological) and metaphysical (religious and spiritual) arguments tell us that, if there is a time between conception and birth at which the prenate ‘enters humanity’, ‘becomes a person’, ‘becomes morally important’ or however we call it, it is most likely to be at some time in the eighth week (Aksoy, n.d.). In sum: even at the very beginning of its existence we owe respect to the unborn, but after eight weeks time to terminate its life should be defined as morally unacceptable.

It may be asked, if the prenate ‘becomes a real person’ after eight weeks, then how do we regard embryos? Donceel (1984, p. 15) suggests that, ‘Although a prehuman embryo cannot demand from us the absolute respect which we owe to the human person, it deserves a very great consideration, because it is a living being, endowed with a human finality, on its way to homonization. Therefore it seems to me that only very serious reasons should allow us to terminate its existence.’ Apparently, it is one thing to say that an entity lacks the dignity of being a person in the strict sense of ‘person’, and another thing to say that it does not have any value. The embryo may, in this respect, be regarded as similar to a human corpse. At the moment in question neither of them are existing human persons. The embryo will be one, as the dead body once was. And we owe respect to both. If we mutilate and disgrace a human corpse it is something immoral and shameful, even though not illegal. Similarly, if we destroy or terminate the life of an embryo, it is not an attack on an individual human being but still inhumane and undignified. However, sometimes it might be necessary to undertake an undignified and inhumane action to undo the signs of another ‘more’ undignified and inhumane action, like rape.

The way Dunstan has expressed the dilemma of abortion (1974, p. 85-6) gives a most helpful direction to our moral thinking on it; ‘We should pass from the question, what harm are we doing to the fetus by destroying it, to the question, what harm are we doing to ourselves, to humanity, when we do so?”

References

• AKSOY, S. (1995) ‘The Silent Journey’, The Fountain, 2 (12), PP. 42-4.
• (1996) ‘What makes a person?’, The Fountain, 14, (n.d.) ‘When does a human individual begin to be? A philosophical, embryological and theological perspective’. (Unpublished paper)
• COLE, L. (1992) My Baby, My Body, My Choice, Lloyd Cole Books,Maidenhead.
• DONCEEL, J.F. (1984) ‘A liberal Catholic’s view’ in Joel Feinberg (ed.)
• The Problem of Abortion, Wodsworth, Belmont CA.
• DUNSTAN, G.R. (1974) The Artifice of Ethics, SCM Press Ltd, London.
• E.B. (1982) Encyclopedia Britannica, 15th edn, Chicago, vol.2, p.1069.
• HARRIS, 1. (1990) ‘Wrongful birth’ in David R. Bromham, Maureen E.
• Dalton & Jennifer C. Jackson (eds) Philosophical Ethics in Reproductive Medicine, Manchester University Press.
• MAHONEY, J. (1984) Bio-ethics and Belief Sheed & Ward Ltd. London.
• MASON, J.K.. (1990) Medicolegal Aspects of Reproduction and Parenthood, Dartmounth, Hants.
• POTTS, M. & DIGGORY, P. (1983) Textbook of Contraceptive Practice, Cambridge University Press, New York.
• PRICE, D.P. (1988) ‘Selective reduction and feticide: the parameters of abortion’, Criminal Law Review, PP. 199-210.
• REISER, S.J., DYKE A.J. & CURRAN, W.J. (1977) (eds) Ethics in Medicine: Historical Perspective and Current Concerns, MIT Press, Cambridge Mass.
• WILLIAMS, G. (1987) Textbook of Criminal Law, Stevens, London.